자기지시성, 다중경로성, 통제가능성 － 헌법개정의 일반이론적 쟁점들 －

Modern written constitutions seek to constitutionally “seize the future” by stipulating amendment procedures as self-correcting mechanisms within the constitutional text itself. This article addresses three critical issues that theories of constitutional amendment must confront: self-referentiality, multiple-pathway configurability, and controllability. It examines the nature and status of constitutional amendment power by questioning whether it has a self-referential characteristic, explores the multi-track configurability of constitutional amendment procedures through comparative constitutional analysis, and looks into the problem of controlling constitutional amendment power with the distinction of judicial and non-judicial control mechanisms. Amending powers are constituted as as a constitutional authority when provisions of the constitution set up the subjects, procedures, and limits of constitutional amendment. Under such frameworks, constitutional amendment norms can be understood as falling into the paradox of self-reference unless constitutional amendment power is interpreted as a delegated authority. In other words, amending power must be viewed as a derivative authority bound by the constitution. Nevertheless, the phenomenon of deviation from constitutional authorization that occurs in constitutional reality cannot be denied. Exercise of such “unconstitutional” constitutional amendment power can be captured with concepts such as “constitutional dismemberment (Albert)” or “partielle Verfassunggebung (Winterhoff).” Various ways of constituting constitutional amendment power can be classified according to the singularity and plurality of procedural tracks, as well as their scope of application in terms of comprehensiveness. The ‘escalator’ design of amendment stages and the presence and scope of unamendability constitute core issues in theorizing constitutional amendment. This article examines the design methods of constitutional amendment provisions based on Albert's typology and analyzes the significance of temporary and permanent amendment prohibition clauses in particular. Furthermore, through the distinction between ‘governmental’ and ‘popular’ amendment procedures, it examines the relationship between the democratic legitimacy of amendment procedures and their judicial reviewability. The problem of controllability of constitutional amendment power is connected to its nature as a derivative authority. It would not be an overstatement to say that constitutional authority that is not subject to constraints and control lacks substance as genuine authority. However, not all constitutional control need to be judicial control. Particularly in participatory amendment procedures that require referendums as mandatory requirements, such as under the current Constitution of the Republic of Korea, it may be more consistent with the legitimacy system of the Constitution to illuminate the significance of referendums as non-judicial control mechanisms rather than introducing ex post constitutional review without explicit basis in the written constitution. On the other hand, the possibility of ex ante intervention of the judiciary before the referendum may be examined more favorably. Finally, this article proposes that serious consideration should be given to introducing partial pluralization of constitutional amendment pathways (multiple pathway) and temporary amendment prohibition clauses (safe harbor) applicable to situations where securing deliberation is difficult due to war or martial law, as constitutional reform proposals for the current constitution.